MAHESWAR DAS AND ORS. Vs. NILAKANTHESWAR MAHADEB AND ORS.
LAWS(ORI)-1988-12-30
HIGH COURT OF ORISSA
Decided on December 22,1988

Maheswar Das And Ors. Appellant
VERSUS
Nilakantheswar Mahadeb Respondents


Referred Judgements :-

DHRUBA CHARAN SWAIN V. JAGANNATH PANDA [REFERRED TO]
CHINTAMANI PATI V. KRISHNA CHANDRA PANDA AND ORS [REFERRED TO]
MADAN PATI AND ORS. V. BIRABARA DAS AND ORS [REFERRED TO]


JUDGEMENT

R.C. Patnaik, J. - (1.)THE Appellants in both the appeals instituted a proceeding under Section 41 of the Orissa Hindu Religions Endowments Act, 1951 (for short the Act) for a declaration that the institution of Sri Nilakantheswar Mahadeb was a private institution belonging to Appellants 1 and 2; alternatively for a declaration that the Appellants were its hereditary trustee if it was found that the Institution was a public one. They alleged that the deity in village Pahana in the district of Cuttack was installed by Sambhu Das, their ancestor. They furnished the genealogy to trace their descend. Sambhu Das bad also endowed certain properties for the seba puja of the deity. The seba puja and management of the institution had vested with the successors until a Board of Management was constituted by the endowment authorities and their management was threatened. The institution was being maintained out of their personal fund without any contribution from the public though members of public used to have darshan of the deity but that was not as a matter of right. Appellant No. 3 is a purchaser in respect of certain properties of the deity mentioned in paragraph -14 of the application. Members of Hindu public - Respondents 2 and 3. refuted the assertions. They averred that the deity had been installed by the ancestors of the villagers. Management has stayed throughout with the villagers. The institution is a public temple dedicated for the worship by the villagers and residents of nearby villages. Besides the properties alienated to Appellant No. 3, other properties which had also belonged to the deity but had been alienated. They appended data its of such properties to their written statement. Respondent No. 4 who was opposite party No. 4 in the anginal proceeding, however, took the plea that though the institution was a public temple, the seba puja and management of the deity had remained with Appellants 1 and 2 and their ancestors and the alienation in favour of Appellant No. 3 being void, did not confer any right on him. The parties went to trial and led evidence. On the evidence, the Additional Assistant Commissioner of Endowments held that the institution -Respondent No. 1 was a public temple but Appellants 1 and 2 (the typographical error bad been noticed by the appellate Court) were hereditary trustees. He further held that the properties mentioned in paragraph 14 of the application and in the schedule appended to the written statement belonged to the institution.
(2.)AGGRIEVED by die decision of the original authority declaring that Appellants 1 and 2 as the hereditary trustees, Respondents 1 to 3 lodged First Appeal No. 19 of 1984. Appellant No. 3 preferred First Appeal No. 23 of 1984 aggrieved by the finding that the institution was a public temple and alienation in his favour was void. The Appellants also tiled cross -objection in First Appeal No. 19 of 1984 against the findings recorded by the original authority which were adverse to the.
The appellate authority confirmed the finding that the institution was a temple within the meaning of Section 3(xv) of the Act and its property except those at Paikana and Banikuda was religious endowment. It reversed the finding of the original authority that Appellants 1 and 2 are the hereditary trustees of the institution. It, therefore, dismissed the appeal filed by Appellant No. 3 and allowed the appeal filed by Respondents 1 to 3, giving rise to the two appeals filed by the Appellants.

(3.)AT the nearing of the appeals, the concurrent findings of the Courts below that Respondent No. 1 was a temple and its property was religious endowment, were not assailed. The only contention that was urged by Sri S. Misra (1), the learned Counsel for the Appellants was that on the materials in record, the appellate authority erred in law in negativing the claim of Appellants 1 and 2 as hereditary trustees.


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